Tag Archives: Patrick Witt

Few figures involved in the Duke lacrosse case behaved more disgracefully than Wendy Murphy, an adjunct professor at the New England School of Law. A frequent TV commentator on the case, she earned a reputation for defending Mike Nifong’s prosecution through myriad errors of fact, misstatements of the law, and deeply offensive statements such as her betting that “one or more of the players was, you know, molested or something as a child.” To Murphy, there are no false accusers of rape–so as soon as an accusation is made, a “victim” exists. The presumption of innocence, she has maintained, is no more than a presumption that the “victim” isn’t telling the truth.

That bizarre conception of due process is right at home at Yale. The university’s troubling new policies toward sexual assault allegations reached public attention through the New York Times‘s attempt to smear former Yale quarterback Patrick Witt, who was caught up in the university’s Kafka-like “informal complaint” system. (In this procedure, designed to give the accuser maximum control of how the process plays out, the accused student doesn’t even have the right to present evidence of his actual innocence, much less cross-examine the accuser or have legal representation.)

The Witt affair turned out to be the tip of the iceberg regarding due process–an internal report revealed that the “informal complaint” policy allowed Yale to set up a monitoring program for at least one faculty member without even telling him he’s under investigation. The allegation of sexual harassment alone was sufficient for the finding of guilt.

Now these sorts of arrangements will be the norm. Yale has entered into a consent decree with the Office of Civil Rights, ensuring the “use of the preponderance of evidence standard in determining whether sexual misconduct occurred”; promising an informal complaint procedure in the future in which no accuser has to face cross-examination from the person she accused; and creating a double jeopardy system in which the rare accuser who doesn’t get her way at the lower level can appeal a not-guilty finding. So it’s almost fitting to see the commentator renowned for denigrating due process and the university that celebrated its own denigration of due process paired up in a race to the bottom.

The triggering event was a Title IX lawsuit–generated, Murphy claimed, by the Yale-OCR settlement–filed by her and another attorney, John Williams, on behalf Susan Burhans, who formerly served as security education coordinator for the Yale Police Department. The filing’s basic thesis: over the course of a decade, Burhans recommended a variety of policies which, if adopted, would have ensured that the OCR had no grounds for acting against Yale. But instead of Yale accepting her wise counsel, Burhans was fired.

A Connecticut Superior Court already appears to have dismissed Burhans’s case, for reasons that aren’t hard to discern, given some of the claims the lawsuit offers. Murphy and her co-counsel maintain that Burhans discovered that Yale accusers were “revictimized during sexual assault grievance procedures,” and demanded that her supervisors institute new procedures. (The complaint doesn’t reveal what these new procedures were.)

Burhans “experienced an increasing number of colleagues avoiding her,” which Murphy and her co-counsel suggest constitutes evidence that Yale violated Title IX. And the complaint wants to hold Yale liable for posting a $129,000 job in the security department requiring “qualifications Burhans did not possess.” Finally, the complaint reveals that Burhans applied for around 50 other jobs at Yale and didn’t get any. Again, it’s not clear how this is evidence of a Title IX violation.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

Remarks delivered at a Manhattan Institute luncheon, March 28, 2012 in New York City. Professor Johnson and attorney Harvey Silverglate, whose talk will be presented here tomorrow, spoke on “Kangaroo Courts: Yale, Duke and Student Rights.”

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Before the Patrick Witt case, I had some experience writing about how the New York Times handles cases of sexual assault allegations against high-profile college athletes–the Duke lacrosse case. After all that damage had been done, and after more than a hundred articles had been published in the New York Times, two Times editors, including Bill Keller, issued some half-hearted apologies for how the paper had mishandled the case, and “mishandled” is a generous word for what the Times did.

I had always worked under the assumption that when an institution
apologizes, it also takes steps to ensure that it doesn’t commit the
same kinds of mistakes again. But the Times obviously has a different
standard of apology than I do. And in the Patrick Witt case, the same
sorts of mistakes were made in coverage — a presumption of guilt when
the allegation is sexual assault, and a decision to ignore critical
procedural issue — because they don’t fit the preconceived storylines.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

In a column posted Saturday, New York Times Public Editor Arthur Brisbane concluded that the paper
had gotten it wrong when it went after Yale quarterback Patrick Witt.
Brisbane wrote “that reporting a claim of sexual assault based on anonymous
sourcing, without Mr. Witt’s and the woman’s side of it, was unfair to Mr.
Witt. The Times thought it was a
necessary part in its exposé of the feel-good sports story. But the impact of
the ‘sexual assault’ label on Mr. Witt is substantial and out of proportion for
a case that went uninvestigated and unadjudicated.”

But Brisbane’s intervention came much too late: the original
article by Richard Pérez-Peña cannot be undone; replete with extraneous information
about Witt’s “minor arrests” and framed in such a way that a fair-minded reader
would conclude that Witt’s probably a rapist, the Times savaged Witt’s reputation. A February 5 Google search for
“Patrick Witt” “sexual assault” yielded 37,800 results. And, as espn.com’s Jemele
Hill pointed out, the Times’
publication of the article probably ended any chance that Witt had of being
drafted by the NFL.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

Richard Perez-Pena’s New York Times article on Patrick Witt consisted of little more than dubious inferences and negative insinuations. But the story did, unequivocally, feature one revelation: someone (presumably either in the accuser’s entourage or a Yale administrator) violated Yale’s procedures by leaking existence of the “informal” complaint against Witt–with the motive of torpedoing his Rhodes candidacy. In combination with the Times‘ irresponsible reporting, this violation of procedures caused enormous damage to Witt’s reputation. Yet there’s no sign that Yale has undertaken an investigation as to whether a university employee violated Yale procedures and Witt’s due process rights, and an e-mail to Yale’s P.R. office asking if such an inquiry was planned went unanswered.

In a thoughtful essay, espn.com’s Jemele Hill examined the fallout: “Real due process in this case was destroyed by whomever shared the story to the Rhodes Trust and The New York Times,” and as a result “Witt’s reputation has been irreparably damaged.” Hill, one of a handful of reporters or columnists to issue a genuine, public apology for having rushed to judgment about the Duke lacrosse case, condemned both Rhodes and Yale for “hiding behind confidentiality and an unwillingness to comment,” leaving Witt with no avenue for regaining his reputation. Hill concluded that “with so much confusion between the reported timeline and Witt’s version, either the Rhodes Trust or Yale is obligated to clear up whether Witt’s scholarship campaign ended at his request or theirs.”

Hill’s hope that the Rhodes Trust will bring transparency to what happened (which would include revealing the improper leaker’s identity) seems far-fetched. But Yale’s silence is harder to excuse. Even if (as is likely, given campus politics) the Yale administration is afraid to be perceived as caring about Patrick Witt, the university’s silence about such a flagrant violation of the school’s sexual harassment and assault policy stands in stark contrast to the administration’s loquaciousness about the policy in general. Ironically, on Tuesday, Yale president Richard Levin penned a university-wide e-mail hailing Deputy Provost Stephanie Spangler for producing a “comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions.”

Politics, Procedures, Pretenses, But No Due Process?

Levin noted that the Yale administration “thought it was important to provide greater transparency about the entire array of concerns–including verbal harassment and sexual assault–to motivate the Yale community to improve our campus climate.” After some standard boilerplate (“let us join together unified in a common commitment to proper behavior and mutual respect”; “there is no place for any form of sexual misconduct on our campus”), Levin got to the heart of the matter: “The new procedures and services we have put in place are necessary, but they are not sufficient.”

The Witt affair, of course, exposed to the world the shortcomings of those procedures even as they currently exist. Yale’s “informal complaint” procedure ensures limited or no investigation and allows the process to begin on the basis of an accuser’s “worry.” The university’s formal complaint procedure, meanwhile, promises the accuser “considerable control . . . as the process unfolds,” culminating in judgment by an unfair, preponderance-of-evidence standard.

Yet according to Levin, these procedures, wildly tilted in favor of the accuser, are “not sufficient.”

In her report, Spangler spoke much more bluntly about the “informal” complaint process from which the improper leak sprung. The deputy provost dropped any pretense that Yale seeks to provide due process or find the truth. Instead, she affirmed that the informal complaint procedure’s “goal is to achieve a resolution that is desired by the [accuser],” so that accusers can “regain their sense of wellbeing,” even though the process provides no mechanism for determining whether the accuser is telling the truth. In fact, the process seems all but designed to ensure that the truth won’t be discovered, especially if the accuser is less than truthful. According to Spangler, Yale wants the informal complaint procedure to give the accuser “choice of and control over the process.” This goal is incompatible with providing due process to the accused.

Sexual Assault Statistics

Spangler’s report details thirteen allegations of sexual assault by Yale undergraduates from 1 July through 31 December 2011. Since Yale currently enrolls 5322 undergraduates, the report suggests that 0.24 percent of Yale students reported a sexual assault over this six-month period.

The FBI crime statistics for the last six months of 2011 aren’t currently available. But during the period from 1 January through 30 June 2011, New Haven, with a population of around 130,000, experienced 25 reports of sexual assault. That means 0.02 percent of New Haven residents reported a sexual assault over this six-month period. Making the not unreasonable assumption that instances of sexual assault in New Haven were about the same in the second half of 2011, per capita reports of sexual assault on the Yale campus were 10-12 times greater than those in New Haven.

How, possibly, could Yale have a rate of sexual assault many times greater than the city the FBI has billed the fourth most dangerous city in the country? Spangler provides an answer, buried in a footnote on the last page of her document: “This report uses a more expansive definition of sexual assault” than required under federal law (or that any police department anywhere in the country employs). Moreover, none of the 13 Yale students who alleged sexual assault even filed a formal complaint at Yale–much less reported the alleged crime to police. As a result, no medical or criminal investigations of their cases ever occurred. When the allegations remained confidential, this didn’t pose much of a problem for the accused. For Witt, obviously, the outcome was much different.

Tricky Terminology in the Times

When Times readers learned from Richard Perez-Pena that “a fellow student had accused Witt of sexual assault,” how many of them realized that Yale was actually using an “expansive definition” of this otherwise commonly-understood term? How many readers further realized that Yale had designed the procedure about which Perez-Pena wrote so as to give Witt’s accuser “control over the process,” including limited or no investigation? And how many readers could have dreamed that the procedures guiding the allegation against Witt have produced the extraordinary claim that sexual assault is far, far more common on this Ivy League campus than in the fourth most dangerous city in the country? And since the Times went to print without ever speaking to Witt or (it seems) anyone sympathetic to him in the Athletic Department, didn’t the paper at the very least have an obligation to provide the context that would explain the highly unusual procedures and definitions that Yale features?

While President Levin and Deputy Provost Spangler are cowards on the issue of due process, there’s no reason to believe that they share the indifference of a figure like the Times‘ Perez-Pena or the malevolence of someone like Poynter source/seminar instructor Wendy Murphy. Rather, they appear to have embraced a thesis common among both the professoriate and “victims’ rights” groups: that the way to persuade more real victims of sexual assault to report the crime is to jerry-rig procedures to make it more likely that those who do file reports will prevail, whether in court or before campus “judicial” tribunals. This mindset, however well-intentioned, contradicts any reasonable definition of due process and presumption of innocence. That President Levin seems prepared to further abandon these bedrock American principles, as he implied he will do in his campus-wide e-mail, is a sad commentary on the state of higher education.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

In an ideal world, Richard Perez-Pena and the New York Times would have been subjected
to widespread condemnation, even shame, for the character-assassination frame
the paper gave to the Patrick Witt story. Kathleen Parker, most prominently, has
spoken with moral clarity on the issue, translating the Times argument as, “We don’t know
anything, but we’re smearing this guy anyway.” But far more common have been
defenses of the Times–or even claims
that the Times should have done more
to portray Witt in a negative light.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

The denouement of the Times’coverage of Duke lacrosse came when then-sports editor Tom
Jolly apologized for the paper’s guilt-presuming, error-ridden articles on
the case. Will the paper ever get around to giving former Yale quarterback
Patrick Witt an apology? With a few days perspective, it’s become clear that
the Times‘ mishandling of the Witt story
was, in two specific ways, even worse than originally believed.

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.